Benham v Holyoake - [2017] SADC 105

District Court of South Australia
(Civil: Minor Civil Review)
BENHAM & ANOR v HOLYOAKE & ANOR
[2017] SADC 105
Reasons for Decision of Her Honour Judge Schammer (ex tempore)
15 September 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - JUDICIAL REVIEW
Minor Civil Review.
The Applicants and the Respondents are the owners of properties at Parafield Gardens, which properties share a common boundary at the rear of each property.
The Applicants’ son conducted repairs to the fence on that common boundary in or about November 2016 and then sought to recover half of his estimated costs in undertaking those repairs from the Respondents.
The Respondents deny reaching an agreement with the Applicants or their son, authorising the Applicants’ son to undertake the repairs to the fence or to pay the Applicants or their son for half of the son’s estimate of the cost such repairs.
The Applicants contend that there was such an agreement, or in the alternative that they are entitled to recover half of the costs of the repairs pursuant to s 16 of the Fences Act 1975 or pursuant to the terms of their Cross-Notice dated 26 November 2016.
Held:-
The Magistrate did not err in his reasoning nor in his substitution of the Applicants as Plaintiffs to the action.
The order made by the Magistrate dismissing the plaintiffs’ claim is affirmed.
The order made by the Magistrate that the plaintiffs’ pay the defendants’ costs of action in the sum of $190 is affirmed.
To ensure certainty and no further disputes between the parties as to what further fencing work is to be undertaken, by whom and at what cost, the additional orders made by the Magistrate are rescinded and the following orders are made in lieu:-
1.       The tek screws and fixing devices used by Dean Benham in the repairs to the fence are to be removed by Dean Benham within 21 days of today. I fix a notional cost of $100 for such work.
2.       The Respondents may affect through the agency of their contractor, Mr Bob Scott, either the first or second of the options as set forth in his quotation dated 15 November 2016. The option is to be chosen at the discretion of the Respondents.
3.       To enable this work to be undertaken the Respondents and/or their contractors are to have access to the Applicants’ property. The Applicants must allow them such access and not impede such access.
4.       The Respondents are to give the Applicants as much notice as reasonably practicable to confirm when the work referred to in order 2 is to be undertaken and in any event, not less than 48 hours’ notice.
5.       The cost of the work to be done by Dean Benham and Mr Scott is to be borne by the parties on a 50/50 basis.
6.       No order as to the costs of the Application for Review.
Magistrates Court Act 1991 s 38(1)(f), 38(6); Fences Act 1975 s 6(3), 8(1), 8(2), 12(6); Magistrates Court (Civil) Rules 2013 r 3, referred to.

BENHAM & ANOR v HOLYOAKE & ANOR
[2017] SADC 105
Background

This is an application for review of the decision of Magistrate Forrest made on 28 June 2017. That decision relates to repairs undertaken to a dividing fence between properties at Parafield Gardens owned by the Applicants, Mr and Mrs Benham, and the Respondents, Mr and Mrs Holyoake.
I have had regard to a large volume of material. I have seen the file in the action which was commenced in the Elizabeth Magistrates Court. I have read the transcript of the evidence that was taken and heard before the Magistrate and I have considered the exhibits tendered before the Magistrate.
I have read the decision of Magistrate Forrest, which is the subject of this review, the Application that was filed by the Benhams, wherein they outlined why they were dissatisfied with the Magistrate's decision, the affidavit that was filed by Mr and Mrs Benham, the written case of the Respondents and the affidavit of Mrs Holyoake.
By way of background, the action was commenced by Dean Benham, the Applicants' son, as a claim against Mr Tony Holyoake only, for the recovery of a debt, in the sum of $1,050 plus court costs. The debt was said to be for fencing repairs undertaken by Dean Benham to the fence between his parents' property and the Holyoakes’ property (‘the fence’).
The repairs were undertaken in or about November 2016 and involved the replacement of the old wooden railings of the fence with new steel ones. In effecting the repairs Dean Benham used some tek screws to affix the new steel railings and these were inserted by him from the Benhams' side of the fence, with the result being that the screws protrude through the fence.
The Holyoakes did not allow Dean Benham access to their property to finish the repairs, meaning the sharp ends of the screws remain protruding through the fence.
The amount claimed by Dean Benham represented half of his estimate of the costs for the labour and materials to undertake the repairs, being a sum of $1,000 (i.e. half of $2,000). As the claim was for $1,050, I have assumed the extra $50 was for interest.
A defence and counterclaim was filed in the name of Mr and Mrs Holyoake. They denied ever reaching any agreement with either Dean Benham or Mr and Mrs Benham to conduct the repairs. They allege the repairs were not undertaken with compliance with the procedures set forth in the Fences Act 1975 and they claimed the repairs had left the fence in an unsafe and hazardous condition. They lodged a counterclaim in the sum of $900, being the estimated cost to remedy the defects in the fence caused by Dean Benham's repair work and to then properly further repair the fence.
Unfortunately the action could not be resolved and proceeded to trial on 16 June 2017 in the Elizabeth Magistrates Court before Magistrate Forrest. After hearing evidence from Dean Benham, Mr Raymond Benham and Mr and Mrs Holyoake, the trial was adjourned to enable a view to be undertaken of the fence dividing the relevant properties.
During the first day of trial the Magistrate expressed his tentative view that the evidence he had heard to that point failed to disclose, on the balance of probabilities, that there had been any contract concluded between Dean Benham and Mr or Mrs Holyoake with respect to the repairs.
The Magistrate explained to Mr Raymond Benham that the true nature of the dispute was a fencing dispute as between the Benhams as the owners of the property at 28 Halifax Avenue and the Holyoakes as the owners of the property behind at 25 Lancaster Avenue. At that time the Magistrate stated that the correct plaintiffs in the action were Mr and Mrs Benham, rather than Dean Benham, who at best was acting in the capacity as an agent for his parents. He also stated that Mr and Mrs Holyoake should be the defendants, rather than simply Mr Holyoake, as the couple were the joint owners of the property.
On that day the Magistrate adjourned the hearing for three purposes. The first purpose was so to undertake a view of the fence, the second was to enable him to hear evidence from Mrs Benham (as she was not present at court on 16 June 2017). Finally it is clear from the transcript that the Magistrate thought that there may have been some possibility of the parties being able to resolve the dispute, in the period of the adjournment, given what he had said as to his tentative views as to whether or any agreement was reached.
It is clear from the transcript that the Magistrate told the parties that if he did ultimately find that there was not any agreement or contract concluded between the Benhams and the Holyoakes - and he intimated it was unlikely he would conclude that there was such a contract or agreement - then the consequence of that finding would be that the Holyoakes would not be liable for any part of the cost of the repairs.
He also informed everyone who was present on 16 June 2017 that if he concluded there was no contract, the next step for him was to determine what to do next in terms of the fence, because the Holyoakes contended the repairs had left the fence unsafe. He thought it was necessary for him to go out and inspect the fence, to enable any such determination to be made.
The Magistrate conducted a view of the fence onsite on 28 June 2017 as there had not been a resolution of the dispute at that time. On the same day, the trial resumed at 11.30am, at which time the Magistrate heard evidence from Mrs Benham and the final submissions of the parties. He then made formal orders substituting Mr and Mrs Benham as the plaintiffs in the action - something that he had foreshadowed on the previous occasion - and he also delivered his ex tempore reasons for decision.
The Magistrate dismissed the plaintiffs' claim for the monetary sum of $1,050 plus costs and he made orders under the Fences Act 1975, utilising his powers under s 38 of the Magistrates Court Act 1991 and Rule 3 of the Magistrates Court (Civil) Rules 2013. The orders made were:
1All of the tek screws and fixing devices used by Dean Benham in the repairs to the fence, the subject of the action, undertaken in or about November 2016, were to be removed by Dean Benham within 21 days of that date.
2The defendants may effect, either through their own labour or through the agency of the contractor, Bob Scott, one or other of the proposals contained in the quotation of Bob Scott dated 15 November 2016, the option to be chosen at the discretion of the defendants.
3For the purposes of giving effect to the previous order, and in accordance with the Fences Act, the defendants and/or their agents and contractors will have access to the plaintiffs' property.
4The costs occasioned by compliance with these orders are to be borne by the parties on a 50/50 basis.
The Magistrate also ordered that the work referred to in the second order, being the further repairs to the fence, was to be undertaken within 12 weeks after the remedial work as ordered to be undertaken by Dean Benham.
He also ordered that the plaintiffs pay the defendants' costs in the sum of $190, which comprised a filing fee of $140 and $50 for mileage.
The Application for Review
The Applicants have applied for a review of the Magistrate's decision pursuant to s 38(6) of the Magistrates Court Act 1991.
Without repeating the contents of the Application for Review in full, it is apparent that the Applicants contend that the Magistrate was in error in that he:
1Joined the Applicants as plaintiffs to the action without their knowledge or consent, resulting in prejudice to them in the presentation of the case at trial and preventing them from coming to a negotiated resolution of the dispute with the Holyoakes.
2Should have found that the fence was in urgent need of repair such that s 16 of the Fences Act 1975 applied, meaning that the Applicants were entitled to conduct repairs without notice to the Holyoakes and entitled to recover one half of the cost of such repairs from the Holyoakes.
3Should have found that the Holyoakes agreed to the repair work undertaken by their son Dean and that they agreed to pay half of the costs of that repair work.
4Should have ordered they were entitled to proceed as per the contents of their unanswered Cross-Notice dated 29 November 2016.
Did the Holyoakes agree to pay half of the costs of the repair work?
The Magistrate found that the Holyoakes did not reach any agreement either with the plaintiffs, Mr and Mrs Benham, or their son Dean, to meet payment of half of the repair costs.
In doing so, the Magistrate carefully considered the evidence on this issue as given by Dean, Raymond and Coleen Benham and Mr Holyoake. In paras.18-28 of his Reasons the Magistrate has carefully articulated the plaintiffs' contention that there was a concluded contract that came into effect as a result of a conversation which occurred between Dean Benham and Mr Holyoake, either in late October or early November 2016, being in the nature of an over-the-fence type of discussion.
The Magistrate correctly summarised the evidence on this issue and he concluded that the plaintiffs had not established on the balance of probabilities, (i.e. that it was more likely than not) that any such agreement or contract was concluded.
In doing so he stated that even if he had accepted the evidence of the Benhams at its absolute highest as to what transpired during that conversation, which he made it clear he did not, that would not amount to the acceptance by the Holyoakes of any offer to contract by the Benhams (or Dean Benham on their behalf).
The Magistrate had the benefit of hearing and observing each of the witnesses giving evidence at trial and he clearly preferred the evidence of Mr Holyoake as to what transpired during that discussion. He also articulated that the conduct of the parties thereafter following this discussion was also inconsistent with there being any concluded contract or agreement of the type alleged by the Benhams.
The affidavit affirmed by the Applicants attaches as an annexure a statutory declaration made by Mr Raymond Benham. In that statutory declaration Mr Raymond Benham refers to a verbal agreement made between him and Mr Holyoake some 12 years earlier that the fence needed repair. He stated in that declaration, 'We intended to do the job between us but it did not occur.'
This does not in any way equate with any alleged agreement made by the Holyoakes in 2016 for the fence to be repaired by Dean Benham and at a cost to them in the order of (at least) $700. To the extent that there was any tacit agreement reached some 12 years ago about repairing the fence, it is irrelevant to the determination of this particular dispute.
In that same statutory declaration it is asserted that 'We … duly advised’ all of our neighbours (including the Holyoakes) of ‘our intentions’, namely to repair the fence and ‘they all’ agreed to Dean Benham undertaking the repairs and allowing access to their properties. This implies some sort of meeting or discussion as between the Benhams on the one hand and the Holyoakes on the other.
However, the evidence given at trial by the Benhams was that the alleged agreement occurred during an over-the-fence discussion between Dean Benham and Mr Holyoake which conversation was overheard by Mr Raymond Benham in the context of a discussion about work Dean was undertaking to another fence at the time. The Benhams say that during this conversation there was a discussion about the rear fence between their property and the Holyoakes' property also requiring repair.
I do not intend to repeat all of the evidence heard by the Magistrate as to that discussion or alleged agreement. However, after carefully considering all of the evidence that was given at the trial and all of the relevant additional submissions and paperwork, I have reached the same conclusion as that of the Magistrate.
The Applicants have not established on the balance of probabilities that Mr or Mrs Holyoake entered into any agreement either with them or with their son Dean to pay for half of any invoice rendered by Dean Benham for the repair work.
Should the Magistrate have substituted Mr and Mrs Benham as plaintiffs and did the making of this order result in any prejudice to them?
Having concluded that there was no contract between Dean Benham and the Holyoakes, the appropriate order was for the claim made by Dean Benham as against the Holyoakes to be dismissed because neither Mr Holyoake nor Mrs Holyoake have any liability in contract to Dean Benham. However, that left the Holyoakes' counterclaim to be determined together with any claim by Mr and Mrs Benham that they may have for contribution towards the repair work undertaken by Dean. The Magistrate correctly found that the action was in fact a fencing dispute as between the Benhams and the Holyoakes and that the Fences Act 1975 applied.
Pursuant to s 38(1)(f) of the Magistrates Court Act 1991, in determination of a minor civil action the court must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. Further, pursuant to Rule 3 of the Magistrates Court (Civil) Rules 2013, in applying the Rules the court must in all things promote the expeditious, economical and just conduct and resolution of an action. While the Magistrate did not order the substitution of Mr and Mrs Benham as plaintiffs until the conclusion of the trial, he did inform Mr Raymond Benham on 16 June 2017 that he and his wife were the correct plaintiffs to the action and he then adjourned the hearing for a period of 12 days to enable the parties to try to resolve the matter and to organise a view.
As such, Mr and Mrs Benham had an opportunity to endeavour to negotiate a resolution of the claim with the Holyoakes during that 12 day period, but for whatever reason that did not transpire. There was no evidence that there was any attempt made to negotiate the dispute during that period, but even if there was it seems apparent that given the level of hostility that still exists between the parties it is extremely unlikely that any agreement could have ever been reached even if attempts were made to do so.
The Magistrate heard evidence from both Mr Raymond Benham and Mrs Coleen Benham as to their recollection as to what had transpired with respect to the fence and its repairs and any alleged agreement with the Holyoakes. Mr Raymond Benham was present and privy to the intimations made by the Magistrate on 16 June 2017 as to his likely finding about whether or not a contract had been concluded. The Magistrate acted properly in substituting Mr and Mrs Benham as plaintiffs to the action as it was an action that should have been commenced by them. It is also apparent from a reading of the transcript that the Magistrate was alive to the relevant issues that existed between the parties throughout the course of the hearing.
The Magistrate heard evidence from the Benhams and gave the parties an opportunity to resolve the matter between days one and two of the hearing. The only possible prejudice that may have been suffered by the Benhams in the matter proceeding in the way that it did, is that they were not given an opportunity to obtain a quotation in response to that submitted by the Holyoakes and relied upon by the Holyoakes from Bob Scott. However, the evidence was that the quotation from Bob Scott was served on Mr and Mrs Benham on or shortly after 17 November 2016, it being an attachment to the Holyoakes' Form 3 Cross-Notice of that date.
In response, the Benhams served another Cross-Notice dated 29 November 2016 wherein they simply reiterated their claim that the Holyoakes had agreed to pay for half the cost of the repair work which had already been completed by their son and that the Holyoakes had refused them access to complete that work.
The quotation from Bob Scott contains three options, all of which, in total, cost significantly less than the claimed cost of the repairs said to have been undertaken by Dean Benham.
The Magistrate was acting in the manner as required of him both by the Magistrates Court Act and the Rules in correcting the defect in the pleadings by substituting Mr and Mrs Benham as the plaintiffs and, having regard to all of the evidence, I am satisfied that there was no prejudice suffered by the Benhams as a result of that order being made.
Did section 16 of the Fences Act apply?
Section 16(1) of the Fences Act 1975 states:
1.     Subject to this section, where a dividing fence is damaged or destroyed and there is an urgent need to repair or restore the fence, either of the adjoining owners may, without notice to the adjoining owner, carry out the requisite fencing work and recover from the owner:-
(a)     one-half of the cost of the fencing work; or
(b)     the amount that the other adjoining owner would be liable to contribute if the dividing fence was replaced,
whichever is lesser.

The question then is, had the fence been damaged or destroyed such that there was an urgent need to repair or restore it?
If so, then the Benhams would be entitled to recover from the Holyoakes the lesser of either half of the sum incurred to undertake the repairs, being $1,000, or half of the cost to replace the fence.
The Magistrate dealt with this issue at paras.30 and 31 of his Reasons. He found that the Benhams had not demonstrated that the fence was in such a parlous state of repair to justify their unilateral action to repair it as per s 16 of the Fences Act.
Turning to the evidence on this issue, in his statutory declaration, Mr Raymond Benham stated that there were numerous storms during 2016 and on one occasion sheets of corrugated iron blew across the road causing damage to the houses opposite. This corrugated iron in fact came from the carport of the Benhams’ next-door neighbour. It was not iron that had come loose from any of the Benhams’ fences. However, this prompted the Benhams to inspect their own fences and conclude they needed repairing, as some of the wooden cross rails had become detached or were missing.
The oral evidence given by Dean Benham was consistent with this, although he stated that his observations of the fence were to the effect that some of the panels were at a greater angle after the storms in question. The fence that is the subject of this dispute is at the very rear of the Benhams’ property and at the very rear of the Holyoakes’ property and there are photographs showing the fence, its location and some of the old wooden beams of the fence which appear to be rotting with some of the screws coming loose. Those photographs show disrepair consistent with the age of the fence.
The mechanism as provided for in the Fences Act as to the exchange of notices is there for a reason. It assists in the resolution of disputes between neighbours as to fencing issues and gives each set of neighbours the opportunity to contribute to decisions affecting the fence, it being the joint property of both neighbours.
Section 16 of the Fences Act is designed to have effect in those extraordinary circumstances where it is critical that a fence be repaired urgently because it has been damaged or destroyed and it is simply not feasible or practical for the usual notices to be exchanged.
There is little doubt the fence was aging and in need of some general repair. However, the evidence falls far short of establishing that the state of the fence was such that it needed urgent repairs so as to invoke s 16 and, as such, s 16 of the Fences Act is inapplicable to this matter.
The Applicants’ Cross-Notice dated 29 November 2016
The Applicants served a Cross-Notice dated 29 November 2016 on the Holyoakes. This notice was served in response to Holyoakes’ Cross-Notice dated 17 November 2017, which was served in response to the Benhams’ original Form 2 Notice dated 9 November 2016. In other words, the Benhams’ Cross-Notice of 29 November 2016 was served to indicate that they objected to the Holyoakes’ counter-proposal as set forth in their Cross-Notice, being a process foreshadowed by s 6(3) of the Fences Act.
The Fences Act does not impose an obligation on the person served with such a notice to respond or otherwise be bound to accept the position as outlined in such a notice. It is easy to see that it could become quite a farcical process if this was the case, with endless notices being exchanged between disgruntled neighbours.
The fact that the Holyoakes did not respond in writing to the Benhams’ Cross-Notice dated 29 November 2016 did not give the Benhams any right to proceed in accordance with the terms of that Notice in a way that would otherwise be endorsed under the Fences Act. The parties were at this stage fully aware that there was a dispute between them as to the fence and its proposed repair and both parties' respective positions were well-known to each other.
In any event, I am satisfied that the repairs undertaken to the fence by Dean Benham were undertaken prior to the expiration of 30 days after service of that notice on the Holyoakes.
The orders made by the Magistrate/Conclusion
I have some sympathy for Mr and Mrs Benham. This dispute arose at a very difficult time for them both when they were struggling with their own medical conditions and the stress associated with their daughter's illness. I expect that they thought that by getting their son Dean to do the repairs this would not only save them some money but get the work done quickly and without too much fuss. However, the fence is the joint property of both the Benhams and the Holyoakes and, while the Benhams may have mistakenly assumed that they had the Holyoakes’ agreement to proceed in the way that they did, they did not.
In proceeding to undertake the repairs to the fence without the consent of the Holyoakes and without any agreement from the Holyoakes to pay for half of Dean's purported invoice and also without otherwise properly following the procedures as set forth in the Fences Act, the Benhams took the risk that a court may order the work undertaken on their behalf be dismantled at their cost and the risk that a court may order other repairs to the fence be undertaken and further costs incurred.
As s 16 of the Fences Act does not apply by virtue of s 8(2) of that Act, no contribution is recoverable under the Fences Act by the applicants from the Holyoakes for the repair work undertaken to the fence by their son, as the repairs were not undertaken in accordance with s 8(1) of the Act. Further, the Magistrate attended at the properties and saw firsthand the then state of the fence and the repairs undertaken by Dean Benham. He was well placed to find that the repairs to the fence in their current state did in fact create a danger and that the tek screws and fixing devices installed by Dean Benham needed to be replaced.
The Applicants queried why the Magistrate made the effort of attending the properties. However, in doing so, the Magistrate was doing only what was required of him which was to ensure a just determination of the matter.
As the repair work was undertaken by the Applicants otherwise than in accordance with the Fences Act and without the Holyoakes’ consent, it is for them to remedy the defects in the fence as identified by the Magistrate in para.34 of his Reasons.
As such it was appropriate for the Magistrate to make the first order that he did, namely that Dean Benham remove the tek screws and fixing devices. However, he also ordered that the cost of this work be borne equally by the parties as per the fourth order. He could have ordered the Benhams pay this cost in full but did not. Further, by ordering this work to be done by Dean Benham, this had the effect of saving the Applicants and the Respondents the cost of retaining another licensed tradesman to do this work, which was really the only other alternative order that could have been made in the circumstances.
The Applicants do not dispute that the fence needed repair. The repairs undertaken by Dean Benham were said to have cost $2,000. The quotation for the proposed repairs recommended by Bob Scott was only $660 to fit new steel rails to the existing posts and reclad with the existing sheets, being in effect the same work undertaken by Dean Benham, albeit excluding any preparatory work undertaken by Dean, which as I understand it, included some cutting back of foliage and removal of mesh and trellis. While I accept it is not appropriate to simply compare the Scott quotations with the invoice rendered by Dean Benham because the Scott quotations exclude any preparatory costs, it is inherently unlikely that those preparatory costs of their own, if performed by a licensed contractor, would have cost in the order of $1,000 or more.
It was open to the Magistrate to make a specific order as to which of the three alternative options set forth in the Scott quotation be undertaken. However it was not an error for him to allow the Holyoakes to choose which option to proceed with, given the cost of the most expensive option was significantly less than that charged by Dean Benham to undertake the work that he did.
Further, it was not an error for the Magistrate to order that the further repair work be paid for equally by the Benhams and the Holyoakes, being the appropriate order to be made in accordance with s 12(6) of the Fences Act 1975. Both the Applicants and the Respondents will equally benefit from having an appropriately repaired dividing fence between their respective properties.
Similarly the order that the Magistrate made as to costs was appropriate. The Holyoakes were entitled to recover the cost of the filing fee and in fact, they could have been awarded additional costs associated with their attendance at the two days of the trial over and above the $50 mileage fee. There was no error by the Magistrate in ordering the Benhams pay the Holyoakes’ costs of action in the sum of $190.
My conclusion is that the Magistrate did not err in his findings or the orders he made on 28 June 2016. However, I am concerned as to how the parties can now proceed in practice having regard to the specific wording of those orders. I am concerned that this may simply result in a further dispute between the Holyoakes and the Benhams, particularly relating to any costs incurred by Dean Benham as per the first order made by the Magistrate.
I affirm the order made by the Magistrate dismissing the Plaintiffs’ claim.
I affirm the order made by the Magistrate that the Plaintiffs pay the Defendants costs of action in the sum of $190.
So as to avoid there being any dispute about how the work is to be undertaken, how much it will cost and who is going to pay for it, I make the follow orders which are similar to but not identical to that of the Magistrate.
1The tek screws and fixing devices used by Dean Benham in the repairs to the fence are to be removed by Dean Benham within 21 days of today. I fix a notional cost of $100 for such work.
2The Respondents may effect through the agency of their contractor, Mr Bob Scott, either the first or second of the options as set forth in his quotation dated 15 November 2016. The option is to be chosen at the discretion of the Respondents. If the second option is chosen, there may be no need for the work referred to in order 1 herein to be undertaken.
3To enable this work to be undertaken, the Respondents and/or their contractors are to have access to the Applicants’ property. The Applicants’ must allow them such access and not impede such access.
4The Respondents are to give the Applicants as much notice as is reasonably practicable to confirm when the work referred to in order 2 is to be undertaken and in any event at least 48 hours’ notice.
5The cost of any work undertaken by Dean Benham and the work undertaken by Mr Scott is to be borne by the parties on a 50/50 basis.
For practical purposes, on the assumption that the work as ordered be undertaken by Dean Benham is required, when the Respondents receive the invoice from Mr Scott, the Applicants will be liable to contribute half of the total of that invoice, less the sum of $50, being the Respondents’ contribution towards the cost of the work undertaken by Dean Benham, meaning the Respondents will not be required to pay any sum to the Benhams for the work referred to in my first order.
I make no order as to the costs of the Application for Review.